While Gov. Andrew Cuomo faces several accusations of sexual harassment, Slate demands that the New York governor deserves due process. However, the contrarian magazine had denied the same fair treatment to Supreme Court Justice Brett Kavanaugh during the infamous Senate confirmation hearing turned-media circus.
The Slate article filed under jurisprudence on Wednesday, entitled "Maybe It’s a Good Thing Andrew Cuomo Is Still Governor," argues that the Me Too movement "should welcome due process." This despite the fact that the Democratic governor stands accused by three different women of sexual harassment.
The March 3 piece was published on the day that Cuomo held his first press conference in more than one week where he addressed the legislative removal of his emergency powers. The state leader refused to resign over the sexual harassment scandal, insisting that "hugging and kissing" are part of his heritage and background; his father greeted others this way, too, Cuomo maintained.
Slate law reporter Dahlia Lithwick cites, in her own work this week, an op-ed by New York Times columnist Michelle Goldberg who suggested Monday that the failure of high-profile Democrats to demand Cuomo's resignation in the face of credible claims about inappropriate comments, texts, and behavior points towards "diminution in the power of #MeToo."
According to Goldberg, if the controversy broke several years ago, prominent Democrats would have felt no choice but to call" for Cuomo's removal.
Goldberg also surmised that part of this failure stems from the public's pivot away from gender to race concerns, Lithwick notes. "Goldberg's points are all true enough," Lithwick comments. "But what if the lesson here is not that #MeToo has somehow failed, or lost steam, but rather that the #MeToo movement—which rightly encouraged people to speak out about abuse, prompting plenty of reckonings and buckets of important journalism—was never sufficient to do all the work of remedying sexual predation?" she prods.
Lithwick urges polite society to allow independent investigators to gather all the facts and arrive at formal conclusions before calling for immediate ousters. To allow for such formal fact-finding process to play out is "neither disparagement of the accusers"—whose accounts should be taken with sincerity, she adds—nor an exempted "get-out-of-jail-free card for the governor," Lithwick insists.
The act is an acknowledgment of an important distinction that "should have been clear" from the beginnings of #MeToo times: a difference between
"having the media surface and report predation" and what's akin to formalized process that investigates and determines what occurred and what should be done. "The press has never pretended to be experts at that latter function," she defends.
Lithwick emphasizes that she does not intend to knock on the "crucial role played by journalism, which has been invaluable in smoking out abuses that are all too often obscured by confidentiality agreements, acute power imbalances, and victim shaming." She wants to recognize that "journalism should launch the process of due process, as opposed to finishing it."
Laborious, confusing, and prolonged investigations may allow predators to "ooze out from under the shame cycle of our peripatetic media spotlight," she narrates, but that "precision and care should be seen as a feature, as opposed to a bug." If cancel culture Americans had redirected their time spent calling for pundits to step down in "formulating and refining an actual process" that could investigate claims and issue guidance, the nation might've been in an optimal place "where more sexual predators could be held accountable rather than fewer," she speculates.
"When an accusation reported in the news is enough," predators dismiss reported press accounts as "mere witch hunts and claim that the lack of investigation renders those accounts inconclusive," Lithwick states. "If we learned anything from the 2020 election cycle, it was that judicial fact-finding can put the lie to false claims about stolen elections," she reflects, referring to former President Donald Trump's legal challenges that were squashed in multiple courts.
Nobody would declare that "drawn-out sexual harassment investigations are perfect," she writes, but that doesn't make "the press-and-rush-to-resignation version" this "perfect substitute."
To refuse to reach immediate irrevocable conclusions is not "repudiation of #MeToo so much as an acknowledgment that serious problems demand sober due process," Lithwick claims, not "failure of the left" or an unjust "double standard."
"It's an acknowledgment that facts matter, that they are discernable, and that doing so takes more patience than the blink of a news cycle allows," she concludes.
As Lithwick has attempted to assert before throughout the #MeToo era, "journalism when it is not followed up by fact-finding and due process was never going to be the answer to the power and information imbalances that lead to sexual harassment and abuse in Hollywood, in government, and in the judiciary."
Lithwick ventures that perhaps Democrats who have demanded that Al Franken depart the Senate before any formal investigatory process was undertaken "haven’t so much soured on the possibility of bringing sexual predators to justice as they have come to realize that insisting on resignations before there has been an investigation" is not "good strategy."
"Paired with the Republican insistence that no matter what the evidence shows," Lithwick continues, "one can start to see that this evolution toward demanding formal processes is not backsliding" but "reaction to two sides of the same coin—reflexive blame on one side and reflexive denial on the other."
This so-called "asymmetry issue" is not because "liberals sometimes punish their worst miscreants while Republicans often reward them," Lithwick counters. It's that both behaviors react to press reports as though it's conclusive findings, she acknowledges. "Of course reporters strive to achieve that," Lithwick admits.
"But there are times when the media fails at that task, which means the asymmetry in the demand for resignations can be mirrored by asymmetry in the quality of reporting," Lithwick quips. In her previous August 2019 article on the Al Franken ejection, Lithwick applauded journalism as one of "the heroes" of the #MeToo movement, stressing how the work of the free press "stalled and almost blocked" the Kavanaugh confirmation. But then she called the "bizarre hearing" the "furthest thing from an investigation or due process" that she "had ever seen."
The end result was the "further degradation of an institution that cannot afford to be degraded right now," she had surmised. "One needn't deplore the great work done by important journalists exposing sexual predation to fear that journalism alone cannot do the work of formal adjudicatory proceedings. But we confuse journalism for due process at our peril."
That same year and month, Slate's one-time contributor Paul Horvitz, former Supreme Court journalist for the International Herald Tribune, alleged in an August 2019 editorial piece that "letting [Justice] Kavanaugh off the hook" sets some kind of "dangerous precedent."
Horvitz summarized in his argument's abstract: "Ethics rules don't apply to Supreme Court nominees as long as they get confirmed, a panel of judges concluded." He lambasted the televised scene on Sept. 27, 2018 that had displayed "Kavanaugh's outburst," which Horvitz called an "egregious violation" of misconduct rules that bar inappropriate partisan statements uttered by judges.
In sworn testimony before the Senate Judiciary Committee, Kavanaugh unleashed this "premeditated, bitter condemnation charging certain senators" with "secret, well-financed conspiracy to ruin him as revenge on behalf of their party's defeated presidential candidate," Horvitz described.
"Now, it appears, congratulations are in order: Justice Brett Kavanaugh is home free," Horvitz sneered 10 months after Kavanaugh's official confirmation. "And so too is any future Supreme Court nominee accused of misconduct."
One week prior to the article, the federal court system's highest arbiter of misconduct complaints, a seven-judge panel, had washed its hands of the Kavanaugh affair by rejecting nine final appeals, including his own appeal to the Judicial Conference's Committee on Judicial Conduct and Disability.
The judges had ruled that because Supreme Court justices aren't subject to any code of ethics, the entire body of judicial misconduct law, rules, and precedent for lower-court judges "preclude review of the merits" of the issue, Horvitz wrote.
The panel was in "virgin legal territory," Horvitz stated, and wanted "no part in characterizing Kavanaugh's actual conduct." He pressed that by "focusing on the man instead of the conduct," the panel "kept Kavanaugh's standing unscathed."
"But in so doing, they left high standards of conduct and integrity for the entire judiciary, not to mention public confidence in the courts, by the wayside," Horvitz penned. To those of us who see this "dangerous erosion" of judicial independence from raw politics, Horvitz claimed that the ruling's "implications are disturbing."
The decision "invites every future Supreme Court nominee to follow the Kavanaugh model," which is to play to constituents on television, secure key confirmation votes, "even if your language violates rules that demand strict impartiality." All the nominee must do to "enter the promised land of ethics immunity is win confirmation," Horvitz fired.
Moreover, if complaints are filed during the confirmation process, judges who manage these grievances have "ample means, whether by apathy or design, to slow the machinery for days or weeks," he wrote. But then the moment the justice is confirmed and sworn in, "the complaints are moot," Horvitz alleged, suggesting that this is "what transpired" in the matter of Kavanaugh. "In effect, the ruling creates an exception for Supreme Court nominees," he argued.
"Had he vowed to take the lesson to heart, it would have been an act of political healing for the nation," Horvitz advanced, foreshadowing President Joe Biden's calls for national unity amid the political left's condemnation of Trump supporters.
He castigated Kavanaugh who "revealed deep political bias just months earlier" and then "took part in the gerrymandering and census cases before the Supreme Court," which are "both contentious disputes vital to the future potency of each major political party," Horvitz proclaimed in his writing.
Horvitz concluded: "A generation from now, Americans will ask how some of our most prominent federal judges became instruments of partisan interests and weapons of political warfare." The judges "themselves allowed it," he had questioned then answered. "Too many were inclined to protect their colleagues from embarrassment," he wrote, rather than "defend the judicial code of ethics."
The ex-journalist expressed dissatisfaction that Kavanaugh was not crucified by the judicial system, so even the outcome of formalized processes appears to disturb self-righteous figures in media, law, and politics.